One area business owners often find challenging is the hiring process. Employment laws apply even in the application and hiring process. In the same way you can’t discriminate against someone for an unlawful reason after you hire them, you can’t do so before you hire them either. When it’s time to expand and bring people on board, there are a few legal things business owners should keep in mind.
Information about the job opening must comply with the law. Most savvy business owners understand there are certain types of questions you’re not allowed to ask during the interview process, such as ones that have to do with people’s status as a protected class. But it’s also important to remember that questions on an application form or information in a job listing or on your website can also get you into trouble if they’re not worded correctly.
Interactions during the job interview can get tricky. Most people assume that it’s common sense that you can’t ask an applicant about their gender, race, nationality, national origin, religion and those types of things during an interview. But in the interest of being polite conversationalists, sometimes employers can step into areas that they really shouldn’t. For example, if somebody was not born in this country and had an interesting last name, you can imagine asking them out of curiosity what nationality their name is. Or maybe looking at the name on the resume, and saying, “I see you have a wedding ring on. Is that your married name?” That’s a no-no. Somebody’s family status or whether somebody intends to start a family is off limits. I know that some employers think it’s relevant to them, but it can’t be considered in the hiring process.
If you do learn personal information about a candidate, you can’t consider it in a hiring decision. Sometimes candidates themselves will bring up their personal lives during the hiring process. For example, someone might volunteer that they’re moving to Minnesota because they’re engaged to a Minnesotan. Sometimes my clients ask me how they’re supposed to “unhear” that kind of information. The point isn’t that you unhear it, or that you can’t know anything about a person—as long as they choose to volunteer it to you. The point is that you can’t consider that information in terms of your hiring decision. For example, you can’t decide that because this woman is going to get married, or because this man has children at home, they’re not a good fit for the company. Remember, you’re just focusing on the candidate qualifications and not on their personal qualities, status or how they choose to identify themselves.
If you choose not to hire someone and they want to know why, err on the side of vagueness. Sometimes people who were not hired will come back and ask why they weren’t selected. For example, they might be looking for feedback about how they could’ve been a more successful candidate. A good practice is not to tell every candidate every specific reason why you are not choosing them over the person who is ultimately hired. I would always suggest saying something along the lines of, “This isn’t a good fit,” or “You don’t meet all of the requirements. We found a candidate who does tick off all the boxes.” You don’t want to give somebody ammunition to come back and say that the reason they weren’t hired is because they’re a member of a protected class.
Provide training for your hiring managers. One way that counsel can help employers is to make sure that their managers or whoever is doing the screening of these candidates are properly trained. Training is one way to reduce the risk of having a claim or an incident. First of all, hopefully it prevents any sort of incident from happening. However, people are people and people make mistakes. And if one of your managers makes a mistake, you need to demonstrably show to a court that you have done the best you can do to prevent that from happening. Because unfortunately, we often find out after an incident has occurred that a company didn’t properly train their managers on how to legally conduct interviews and engage with candidates during the hiring process.
Questions about your company’s hiring process? Call Dawn Van Tassel today for a complimentary initial consultation.